2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 8 - Provisional and Final Remedies and Special Proceedings
§ 9-11-65. Injunctions and Restraining Orders

Universal Citation: GA Code § 9-11-65 (2020)
  1. Interlocutory injunction.
    1. NOTICE. No interlocutory injunction shall be issued without notice to the adverse party.
    2. CONSOLIDATION OF HEARING WITH TRIAL ON MERITS. Before or after the commencement of the hearing of an application for an interlocutory injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for an interlocutory injunction which would be admissible upon the trial on the merits shall become a part of the record on the trial and need not be repeated upon the trial. This paragraph shall be construed and applied so as to save any rights of the parties which they may have to trial by jury.
  2. Temporary restraining order; when granted without notice; duration; hearing; application to dissolve or modify. A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if:
    1. It clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition; and
    2. The applicant's attorney certifies to the court, in writing, the efforts, if any, which have been made to give the notice and the reasons supporting the party's claim that notice should not be required.

      Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance, shall be filed forthwith in the clerk's office and entered of record, and shall expire by its terms within such time after entry, not to exceed 30 days, as the court fixes, unless the party against whom the order is directed consents that it may be extended for a longer period. In case a temporary restraining order is granted without notice, the motion for an interlocutory injunction shall be set down for hearing at the earliest possible time and shall take precedence over all matters except older matters of the same character; when the motion comes on for hearing, the party who obtained the temporary restraining order shall proceed with the application for an interlocutory injunction; and, if he does not do so, the court shall dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification; and in that event the court shall proceed to hear and determine the motion as expeditiously as the ends of justice require.

  3. Security. As a prerequisite to the issuance of a restraining order or an interlocutory injunction, the court may require the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been enjoined or restrained wrongfully. A surety upon a bond or undertaking under this Code section submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the persons giving the security if their addresses are known.
  4. Form and scope of injunction or restraining order. Every order granting an injunction and every restraining order shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive notice of the order by personal service or otherwise.
  5. When inapplicable. This Code section is not applicable to actions for divorce, alimony, separate maintenance, or custody of children. In such actions, the court may make prohibitive or mandatory orders, with or without notice or bond, and upon such terms and conditions as the court may deem just.

(Ga. L. 1966, p. 609, § 65; Ga. L. 1967, p. 226, § 31; Ga. L. 1972, p. 689, §§ 10, 11.)

Cross references.

- Injunctions generally, T. 9, C. 5.

Equity generally, T. 23.

Issuance of injunction to prevent nuisance, § 41-2-4.

U.S. Code.

- For provisions of Federal Rules of Civil Procedure, Rule 65, and annotations pertaining thereto, see 28 U.S.C.

Law reviews.

- For article discussing validity of ex parte injunction affecting constitutionally protected rights, see 7 Ga. L. Rev. 246 (1973). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For comment, "Engendering Fairness in Domestic Violence Arrests: Improving Police Accountability Through the Equal Protection Clause," see 60 Emory L.J. 1011 (2011).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Interlocutory Injunctions
  • Temporary Restraining Orders
  • Form and Scope of Injunctions and Restraining Orders

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 2, T. 55 are included in the annotations for this Code section.

This section deals with extraordinary relief which may be sought and granted during the interim between filing of a complaint and final adjudication of a case on the case's merits. Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970).

Power of trial court to protect rights of parties.

- Trial judge whose ruling is sought to be reviewed is empowered to impose such terms and conditions as in the judge's judgment are necessary to preserve and protect the rights of the parties until the Supreme Court can finally rule upon the question. Bankers Life & Cas. Co. v. Cravey, 209 Ga. 274, 71 S.E.2d 659 (1952) (decided under former Code 1933, Ch. 2, T. 55).

When judgment refusing an interlocutory injunction is brought to the Supreme Court for review, the trial judge is authorized to grant a supersedeas upon such terms as the trial judge deems necessary to preserve the rights of the parties until the judgment of the Supreme Court can be had; it is left, however, in the sound legal discretion of the judge to grant or refuse it. J.C. Lewis Motor Co. v. Mayor of Savannah, 210 Ga. 591, 82 S.E.2d 132 (1954) (decided under former Code 1933, Ch. 2, T. 55).

Failure of court to ensure preservation of status quo as error.

- Trial judge, by issuing rule nisi and granting supersedeas without requiring bond or making other provision to preserve the status quo, effectively deprives the plaintiff who prevailed in the suit for an injunction of the fruits of the plaintiff's victory and thereby commits error. Abney v. Harris, 208 Ga. 184, 65 S.E.2d 905 (1951) (decided under former Code 1933, Ch. 2, T. 55).

Issuance of injunctive relief without notice and hearing.

- Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) absolutely prohibits issuance of an interlocutory injunction or temporary restraining order without service of notice and hearing thereon, except that a temporary restraining order may issue ex parte as provided in subsection (b) of this section. Paine v. Lowndes County Bd. of Tax Assessors, 124 Ga. App. 233, 183 S.E.2d 474 (1971), overruled on other grounds, Chancey v. Hancock, 233 Ga. 734, 213 S.E.2d 633 (1975).

Because a homeowner asked for a hearing on the permanent injunctive relief the homeowner was seeking, the homeowner would not be heard to argue a lack of notice that the hearing would be a final hearing on the merits of the injunction. Meacham v. Franklin-Heard County Water Auth., 302 Ga. App. 69, 690 S.E.2d 186 (2009), cert. denied, No. S10C0865, 2010 Ga. LEXIS 427 (Ga. 2010).

Although other parties had filed summary judgment motions regarding the disputed ownership of equipment, no one had raised the issue of injunctive relief before the hearing, and another party, who did not participate in the hearing, could not be bound by an interlocutory injunction issued against that party without notice under O.C.G.A. § 9-11-65(a)(1). Abel & Sons Concrete, LLC v. Juhnke, 295 Ga. 150, 757 S.E.2d 869 (2014).

Responsibility to file responsive pleadings.

- This section cannot be construed so that in actions seeking a permanent injunction the defendant is relieved of the responsibility of filing responsive pleadings. Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970).

Entitlement of plaintiff to injunction when no defensive pleadings filed.

- When no defensive pleadings are filed, the plaintiff seeking a permanent injunction is entitled to such injunction as a matter of law if the facts alleged authorize such relief. Times-Journal, Inc. v. Jonquil Broadcasting Co., 226 Ga. 673, 177 S.E.2d 64 (1970).

Right to recover actual damage resulting from a wrongful restraint is recognized by O.C.G.A. § 9-11-65 by requiring the applicant to give security against such damages. Moody v. Harris, 170 Ga. App. 254, 316 S.E.2d 781 (1984).

Trial court granted the employee leave to amend the answer to include a claim for wrongful restraint, which remained pending below, and thus, the appellate court had to decide whether the restrictive covenant actually enforced against the employee was illegal; if the restrictive covenant was, then the employee's wrongful restraint claim was meritorious, and the employee could recover such costs and damages, O.C.G.A. § 9-11-65(c), as the employee may have suffered during the period of the injunction's enforcement. Therefore, the ex-employer's motion to dismiss the appeal as moot under O.C.G.A. § 5-6-48(b)(3) was denied. Cox v. Altus Healthcare & Hospice, Inc., 308 Ga. App. 28, 706 S.E.2d 660 (2011).

Insufficient evidence of damages resulting from wrongful order.

- When the only evidence of actual damages resulting from a wrongful restraining order was testimony by the parties affected as to how much the parties lost without any basis upon which the jury could determine the extent of the losses suffered, such evidence was insufficient to support a damages award. Moody v. Harris, 170 Ga. App. 254, 316 S.E.2d 781 (1984).

Issuance of permanent injunction upheld despite failure to request such relief.

- Issuance of permanent injunction preventing city officials from making any further charitable donations was upheld despite the fact that the resident did not request such relief as there was nothing improper in the prohibition of improper practice. Harris v. Gilmore, 265 Ga. App. 841, 595 S.E.2d 651 (2004).

Permanent injunction to preserve property owners association's covenants.

- Trial court properly entered an injunction against a husband and wife requiring them, as homeowners and members of a neighborhood property owners association, to remove a chain link fence that was not allowed pursuant to the association's covenants and the association did not waive enforcement, nor did estoppel apply to grant the husband and wife an exception from the association's rules. Wright v. Piedmont Prop. Owners Ass'n, 288 Ga. App. 261, 653 S.E.2d 846 (2007).

Contempt adjudication for violation of restraining order not error.

- After the trial court issued a restraining order which was personally served on the defendant and thereafter violated by the defendant, the court did not abuse the court's discretion in adjudging the defendant in contempt of court after the hearing, the defendant's only defense being that the court was without jurisdiction to grant the restraining order. Martin v. Harris, 216 Ga. 350, 116 S.E.2d 558 (1960).

Insureds could not be held in contempt for violating an invalid injunction.

- Georgia insured, who had been specifically excluded from an Alabama class action, lacked standing to challenge the Alabama settlement, either in an individual capacity or a representative capacity; an injunction that was granted at the insured's' request was invalid as the insured lacked a legal right to relief and the insurers could not be held in contempt for violating the injunction. Am. Med. Sec., Inc. v. Parker, 279 Ga. 201, 612 S.E.2d 261 (2005).

Dissolving temporary restraining order to allow bank foreclosure proceeding.

- Trial court did not abuse the court's discretion by dissolving a temporary restraining order and allowing a bank to proceed with the bank's foreclosure action as it was within the trial court's discretion to condition the extension of injunctive relief upon the mortgagor's placement of an amount of money in escrow reflecting past-due payments on the mortgage, which the mortgagor declined to do. Morgan v. U.S. Bank Nat'l Ass'n, 322 Ga. App. 357, 745 S.E.2d 290 (2013).

Injunction sufficiently specific.

- Injunction which stated that the defendants were not permitted to continue with the salary and position reductions at issue and were not allowed to interfere with the chief magistrate's ability to interview and hire personnel sufficiently described what was and was not permitted so as to allow for enforcement of the injunction. Pike County v. Callaway-Ingram, 292 Ga. 828, 742 S.E.2d 471 (2013).

Security bond requirement.

- Trial court's decision under subsection (c) of O.C.G.A. § 9-11-65 to require the giving of a security bond is not a prerequisite to a wrongfully restrained party's right to recover damages. Hogan Mgmt. Servs., P.C. v. Martino, 242 Ga. App. 791, 530 S.E.2d 508 (2000), cert. denied, 531 U.S. 1075, 121 S. Ct. 770, 148 L. Ed. 2d 670 (2001).

Appellate review.

- Trial court properly entered a temporary restraining order directing that the north entrance to a shopping center be opened instanter because a 2004 easement was clear and unambiguous and provided for full enjoyment of the easement of ingress and egress to the shopping center. Nat'l Hills Exch. v. Thompson, 319 Ga. App. 777, 736 S.E.2d 480 (2013).

Cited in National Life Ins. Co. v. Cady, 227 Ga. 475, 181 S.E.2d 382 (1971); Ford v. Herbermann, 227 Ga. 751, 183 S.E.2d 204 (1971); Lewis v. Citizens Exch. Bank, 229 Ga. 333, 191 S.E.2d 49 (1972); Akins v. Tucker, 231 Ga. 646, 203 S.E.2d 532 (1974); Fields v. Davies, 235 Ga. 87, 218 S.E.2d 828 (1975); Georgia Ass'n of Educators v. Harris, 403 F. Supp. 961 (N.D. Ga. 1975); Styers v. Pico, Inc., 236 Ga. 258, 223 S.E.2d 656 (1976); Wilson v. Sermons, 236 Ga. 400, 223 S.E.2d 816 (1976); McGregor v. Town of Fort Oglethorpe, 236 Ga. 711, 225 S.E.2d 238 (1976); Shelton v. Peppers, 237 Ga. 101, 227 S.E.2d 29 (1976); Geld-Halden Indus., Inc. v. Parr, 237 Ga. 773, 229 S.E.2d 620 (1976); Nelson v. Bloodworth, 238 Ga. 264, 232 S.E.2d 547 (1977); Saul v. Vaughn & Co., 240 Ga. 301, 241 S.E.2d 180 (1977); Thomas v. Fairburn Banking Co., 244 Ga. 741, 262 S.E.2d 58 (1979); Cheek v. Savannah Valley Prod. Credit Ass'n, 244 Ga. 768, 262 S.E.2d 90 (1979); Fayette County v. Seagraves, 245 Ga. 196, 264 S.E.2d 13 (1980); Gervin v. Reddick, 246 Ga. 56, 268 S.E.2d 657 (1980); Coffey Enters. Realty & Dev. Co. v. DOT, 248 Ga. 224, 281 S.E.2d 611 (1981); Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir. 1981); King v. Ingram, 250 Ga. 887, 302 S.E.2d 105 (1983); Shiver v. Benton, 251 Ga. 284, 304 S.E.2d 903 (1983); Regency Club v. Stuckey, 253 Ga. 583, 324 S.E.2d 166 (1984); Bell v. King, Phipps & Assocs., 176 Ga. App. 702, 337 S.E.2d 364 (1985); Clayton v. Deverell, 257 Ga. 653, 362 S.E.2d 364 (1987); Columbus v. Diaz-Verson, 258 Ga. 698, 373 S.E.2d 208 (1988); Revels v. Hair, 260 Ga. 889, 401 S.E.2d 520 (1991); Georgia Canoeing Ass'n v. Henry, 263 Ga. 77, 428 S.E.2d 336 (1993); Mosley v. H.P.S.C., Inc., 267 Ga. 351, 477 S.E.2d 837 (1996); Ebon Found., Inc. v. Oatman, 269 Ga. 340, 498 S.E.2d 728 (1998); Bootery, Inc. v. Cumberland Creek Properties, Inc., 271 Ga. 271, 517 S.E.2d 68 (1999); Byelick v. Michel Herbelin USA, Inc., 275 Ga. 505, 570 S.E.2d 307 (2002); Kace Invs., L.P. v. Hull, 263 Ga. App. 296, 587 S.E.2d 800 (2003); Bishop v. Patton, 288 Ga. 600, 706 S.E.2d 634 (2011); Davis v. Wallace, 310 Ga. App. 340, 713 S.E.2d 446 (2011); Spirnak v. Meadows, Ga. App. , 844 S.E.2d 482 (2020).

Interlocutory Injunctions

1. In General

Possibility of failure on merits not determinative.

- It is not the function of a preliminary injunction to decide a case on the merits, and the possibility that the party obtaining a preliminary injunction may not win on the merits at trial is not determinative of the propriety or validity of granting the preliminary injunction. Eastman Kodak Co. v. Fotomat Corp., 317 F. Supp. 304 (N.D. Ga. 1969), appeal dismissed, 441 F.2d 1079 (5th Cir. 1971).

Trial courts have the authority to convert an application for an interlocutory injunction into a motion for summary judgment.

- Under O.C.G.A. § 9-11-65(a)(2), when a trial court has given notice of a hearing on an interlocutory injunction, the court may determine the merits of the issues after the interlocutory hearing, but it may do so only if the parties have not objected or have acquiesced. RTS Landfill, Inc. v. Appalachian Waste Sys., LLC, 267 Ga. App. 56, 598 S.E.2d 798 (2004).

Notice to the adverse party is all that is required by paragraph (a)(1) of this section. Consortium Mgt. Co. v. Mutual Am. Corp., 246 Ga. 346, 271 S.E.2d 488 (1980).

Trial court erred in granting permanent injunctive relief at the interlocutory hearing as the defendant had no notice that the trial court intended at that hearing to consider the merits of permanent injunctive relief. McHugh Fuller Law Group, PLLC v. PruittHealth-Toccoa, LLC, 297 Ga. 94, 772 S.E.2d 660 (2015).

There is no requirement of personal service prior to issuance of an interlocutory injunction. Consortium Mgt. Co. v. Mutual Am. Corp., 246 Ga. 346, 271 S.E.2d 488 (1980).

Order held valid.

- When initial restraining order is void for want of notice, second order termed a continuance of the prior order, granted after notice and opportunity to be heard, is valid and has the effect of an interlocutory injunction under subsection (a) of this section. Finney v. Pan-Am. Fire & Cas. Co., 123 Ga. App. 250, 180 S.E.2d 253 (1971).

Trial court did not abuse the court's discretion in granting an interlocutory injunction upon finding that a home builder was causing a private nuisance by allowing water to run-off from the builder's property, damaging the property of an adjoining property owner, since the builder was in default in the action and the property owner's pleadings established that the owner was entitled to the relief sought; the trial court could issue the court's order without giving the builder notice and an opportunity to be heard. Wallace v. Lewis, 253 Ga. App. 268, 558 S.E.2d 810 (2002).

Permanent injunction generally improper after interlocutory hearing.

- General rule is that unless there is an order consolidating the trial on the merits with the hearing on the application for interlocutory injunction as provided in paragraph (a)(2) of O.C.G.A. § 9-11-65, then the entry of permanent relief after an interlocutory hearing is improper. Gwinnett County v. Vaccaro, 259 Ga. 61, 376 S.E.2d 680 (1989).

Trial court's injunction ordering that former employee be enjoined perpetually from disclosing the trade secrets of a former employer was improper because a permanent injunction cannot issue following an interlocutory hearing, and the record established that the trial court did not enter an order consolidating the trial of the action on the merits with the hearing on the former employer's application for the interlocutory injunction. Ward v. Process Control Corp., 247 Ga. 583, 277 S.E.2d 671 (1981).

Limitations on preservation of jury trial.

- Last sentence of paragraph (a)(2) of O.C.G.A. § 9-11-65 preserves the right to a jury trial as to claims for damages when tried with an equity case. It does not create a right to trial by jury in permanent injunction hearings. This is consistent with the second sentence of paragraph (a)(2) of that section, because if there were a right to a jury trial in permanent injunction hearings, then the evidence received at the earlier hearing would have to be reintroduced and repeated. Cawthon v. Douglas County, 248 Ga. 760, 286 S.E.2d 30 (1982). See also 20/20 Vision Ctr., Inc. v. Hudgens, 256 Ga. 129, 345 S.E.2d 330 (1986).

Determination on merits.

- When there is notice of an interlocutory injunction hearing, the court may determine the issues on their merits after the interlocutory hearing when there is no objection or when the parties have acquiesced. Georgia Kraft Co. v. Rhodes, 257 Ga. 469, 360 S.E.2d 595 (1987); Gwinnett County v. Vaccaro, 259 Ga. 61, 376 S.E.2d 680 (1989); Dortch v. Atlanta Journal, 261 Ga. 350, 405 S.E.2d 43 (1991); A & D Asphalt Co. v. Carroll & Carroll of Macon, Inc., 238 Ga. App. 829, 520 S.E.2d 499 (1999).

In the absence of a transcript of a hearing on a request for an interlocutory injunction, it would be assumed that, consistent with the court's order, the trial court timely exercised the court authority under paragraph (a)(2) of O.C.G.A. § 9-11-65 and that the court did so with the landowners' consent. Sapp v. Owens, 270 Ga. 36, 504 S.E.2d 665 (1998).

After a trial court held a hearing on the companies' requests for a temporary restraining order (TRO) and to compel arbitration regarding a former executive's decision to accept employment with a competitor, and the TRO hearings were not consolidated with a trial on the merits, nor did the companies acquiesce in any decision to issue a final ruling on the merits pursuant to O.C.G.A. § 9-11-65(a)(2), there was no error in the trial court's determination that the covenant not to compete in the executive's employment agreement was not enforceable as the court was authorized to make such a determination in considering the likelihood of the companies' success on the merits. Once the covenant was found to be unenforceable on the convenant's face, the trial court was authorized to enter a definitive ruling as to the covenant's unenforceability. BellSouth Corp. v. Forsee, 265 Ga. App. 589, 595 S.E.2d 99 (2004).

Evidence at hearings on interlocutory injunctions.

- In hearings on interlocutory injunctions, rules of evidence are not in all respects as rigidly enforced as on final trials, and admission of some secondary evidence, or admission of some hearsay or opinion evidence, will not necessarily require reversal. State Hwy. Bd. v. City of Baxley, 190 Ga. 292, 9 S.E.2d 266 (1940); Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941) (decided under former Code 1933, Ch. 2, T. 55).

Treatment of fact issues on hearing of application for interlocutory injunction.

- On the hearing of an application for an interlocutory injunction, the presiding judge should not undertake to finally adjudicate issues of fact, but should pass on such questions only so far as to determine whether the evidence authorizes the grant or refusal of the interlocutory relief. Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24 (1941) (decided under former Code 1933, Ch. 2, T. 55).

In an action arising out of an alleged breach of a land sales contract, given that the trial court relied on findings of fact that had been resolved only in the context of the ruling on an interlocutory injunction filed by the buyer, and that issues of material fact plainly remained as to whether the seller fulfilled the contractual obligations to designate land adjacent to the buyer's property for use as a city or county road, the trial court's grant of summary judgment to the seller had to be reversed. Taylor v. Thomas, 286 Ga. App. 27, 648 S.E.2d 426 (2007).

Discretion of judge as to grant of interlocutory injunction.

- When, in a suit for injunction, evidence introduced at an interlocutory hearing consisted only of an original petition and the defendant's answer, which considered together presented an issue of fact as to the truth of the allegations made by the plaintiff as a basis for the relief sought, the presiding judge was not bound to grant an interlocutory injunction, and the judge's judgment refusing the injunction would not be disturbed. Spivey v. Pope, 180 Ga. 609, 180 S.E. 118 (1935) (decided under former Code 1933, Ch. 2, T. 55).

Absent any findings that the status quo was endangered or in need of preservation, and because an interlocutory injunction did not in fact preserve the status quo but forced a dog kennel owner to cease operations, the trial court abused the court's discretion in granting relief to an adjacent neighbor of the business, especially since that business had been in operation for several years without complaint. Green v. Waddleton, 288 Ga. App. 369, 654 S.E.2d 204 (2007).

In hearings on an application for interlocutory injunctions when the evidence on material issues of fact is in conflict, grant or refusal of the application is within the discretion of the judge, and the exercise of the judge's discretion in granting or refusing the relief prayed for will not be controlled unless manifestly abused. Turner v. Trust Co., 214 Ga. 339, 105 S.E.2d 22 (1958) (decided under former Code 1933, Ch. 2, T. 55).

Trial court did not abuse the court's discretion in issuing an interlocutory injunction enjoining officers from disposing of any of the documents or assets of a corporation and continuing a receivership because the officers controlled the assets that were a subject of the litigation, raising the possibility that the assets could be dissipated before the litigation is resolved; although the officers made several vague arguments about the powers granted to the receiver, the officers failed to show that the trial court abused the court's discretion in granting those powers. Pittman v. State, 288 Ga. 589, 706 S.E.2d 398 (2011).

Appeal will lie to grant or refuse an interlocutory injunction. Walker v. Ful-Kalb, Inc., 181 Ga. 574, 183 S.E. 776 (1935); Moore v. Selman, 219 Ga. 865, 136 S.E.2d 329 (1964) (decided under former Code 1933, Ch. 2, T. 55).

Appeal will lie to grant or refuse an interlocutory injunction, and to any judgment which would have constituted a final determination of the cause. Hagans v. Excelsior Elec. Membership Corp., 207 Ga. 53, 60 S.E.2d 162 (1950) (decided under former Code 1933, Ch. 2, T. 55).

When, after interlocutory hearing, a trial judge passes an order continuing in effect a previous restraining order until further order of the court, such order is in effect the granting of an interlocutory injunction and may be appealed directly. Moore v. Selman, 219 Ga. 865, 136 S.E.2d 329 (1964) (decided under former Code 1933, Ch. 2, T. 55).

Appeal from dissolution of temporary injunction after notice and hearing.

- Appeal will lie from the order of the trial court, rendered after notice and hearing, dissolving a temporary injunction previously granted by the court, after notice and hearing. Moore v. Selman, 219 Ga. 865, 136 S.E.2d 329 (1964) (decided under former Code 1933, Ch. 2, T. 55).

Order held erroneous for lack of notice and hearing.

- Order in a pending suit making additional parties defendant and granting an interlocutory injunction as to the parties, without any notice, rule nisi, or hearing, is erroneous. Fitzpatrick v. Bloodworth, 205 Ga. 366, 53 S.E.2d 917 (1949) (decided under former Code 1933, Ch. 2, T. 55).

Trial court erred in broadly and permanently enjoining two partners, who had been accused of wrongfully dissolving the partnership, from taking certain business actions on behalf of the partnership because the trial court failed to provide notice that the court was considering an award of preliminary and permanent injunctive relief prior to the hearing. Petrakopoulos v. Vranas, 325 Ga. App. 332, 750 S.E.2d 779 (2013).

Manifest abuse of trial court's discretion found.

- In a cause of action involving a dispute between joint venturers, the trial court manifestly abused the court's discretion in granting a temporary injunction which prohibited the plaintiff from engaging in any act which would have the effect of contesting the voting rights of investors in plaintiff's member entities, when those investors wanted to use the votes to gain control of the plaintiff and dismiss the lawsuit. The injunction did not maintain the status quo and failed to balance the equities of the parties properly. Hampton Island Founders v. Liberty Capital, 283 Ga. 289, 658 S.E.2d 619 (2008).

Order denying interlocutory injunction held erroneous.

- In a suit brought by a property owner seeking to specifically perform an oral agreement to purchase a strip of real estate, the trial court properly denied the property owner's request for an interlocutory judgment based on a violation of the statute of frauds and because another held a first right of refusal over the sale/purchase of the property. However, the trial court erred by concluding that the property owner had not obtained a parol license to use the strip since the property owner had made expenditures to improve the land and, as to the right of first refusal held by another, the grant of a parol license was not the equivalent to a sale of the property to have in anyway interfered with that right. Meinhardt v. Christianson, 289 Ga. App. 238, 656 S.E.2d 568 (2008).

2. Consolidation

Paragraph (a)(2) of this section authorizes court to make prohibitive or mandatory orders in the court's discretion, and gives the court discretion, for example, to postpone a contempt action pending a separate determination on the merits of the matter involved in the defendant's plea in abatement. Crosby v. Greene, 237 Ga. 56, 226 S.E.2d 739 (1976).

Consolidated hearing necessary for final determination of issues.

- Trial court can grant an interlocutory injunction to preserve the status quo, but cannot make a final determination of the issues at an interlocutory hearing unless there is a consolidated hearing as authorized by paragraph (a)(2) of this section. Miller v. Wells, 235 Ga. 411, 219 S.E.2d 751 (1975), overruled on other grounds, Wheatley Grading Contractors v. DFT Invs., Inc., 244 Ga. 663, 261 S.E.2d 614 (1979).

Grant or denial of an interlocutory injunction, as well as the affirmance thereof by the appellate court without opinion, does not establish the law of the case for a trial on the merits. Sneakers of Cobb County v. Cobb County, 265 Ga. 410, 455 S.E.2d 834 (1995).

Consolidation not required.

- Paragraph (a)(2) of this section permits, but does not require, consolidation of a trial on the merits with hearing on the application for interlocutory injunction. Kirk v. Hasty, 239 Ga. 362, 236 S.E.2d 667 (1977).

Consolidation not permitted when party objects.

- Trial court is not permitted to consolidate a hearing on an injunction with a hearing on the merits over the objection of one of the parties. Brevard Fed. Sav. & Loan Ass'n v. Ford Mt., Inc., 261 Ga. 619, 409 S.E.2d 36 (1991); Fontaine Condominium Ass'n v. Schnacke, 230 Ga. App. 469, 496 S.E.2d 553 (1998).

In an action by a city to, inter alia, compel a county tax commissioner to pay school tax receipts, a trial court erred in converting a hearing on an interlocutory injunction into a final hearing on a permanent injunction and a writ of mandamus without the proper notice under O.C.G.A. § 9-6-27(a); the commissioner was only given two days' notice and also did not consent to having any mandamus issue heard by the trial court without a jury under § 9-6-27(c) or to having the request for permanent injunctive relief under O.C.G.A. § 9-11-65(a)(2) heard at the same time. Ferdinand v. City of Atlanta, 285 Ga. 121, 674 S.E.2d 309 (2009).

Judgment was vacated and the case was remanded because the trial court consolidated an initial hearing on a landowner's application for an interlocutory injunction against a neighbor with a hearing on the merits of the landowner's complaint, and issued a permanent injunction in favor of the landowner over the neighbor's objection to the hearings being consolidated. Smith v. Guest Pond Club, Inc., 277 Ga. 143, 586 S.E.2d 623 (2003).

In a feud between siblings over their aunt's estate, the parts of the trial court's order that granted permanent relief were vacated because the motion that the order purported to resolve asked for interlocutory relief; although the trial court stated that the requested interlocutory injunction had been converted to a permanent injunction by the court pursuant to notice provided at the hearings, no such notice was found in the record, and the failure to give such notice could not be overlooked as the appellants made clear at several points during the hearing that the appellants objected to the court's granting permanent relief. Barnes v. Channel, 303 Ga. 88, 810 S.E.2d 549 (2018).

Trial on merits held proper absent objection by adverse parties.

- When lessors in a landlord/tenant case were on notice of the hearing on their motion for interlocutory injunction and did not object at trial to the trial judge's hearing the merits of the case at the interlocutory injunction hearing, the trial court did not err in advancing the trial on the merits without prior notice to the parties. Wilkerson v. Chattahoochee Parks, 244 Ga. 472, 260 S.E.2d 867 (1979).

Consolidation of hearing for an interlocutory injunction with the final hearing on the merits.

- In an action to abate a nuisance and for injunctive relief against the owner and operator of a spa, the trial court did not abuse the court's discretion in advancing the trial on the merits and consolidating the trial with the hearing on the interlocutory injunction. Kim v. State, 272 Ga. 343, 528 S.E.2d 798 (2000).

Temporary Restraining Orders

Section to be strictly construed.

- Because ex parte temporary restraining orders are harsh remedies, statutes authorizing such remedies must be strictly construed; therefore, statutory notice requirements were determined to be mandating and jurisdictional. United Food & Com. Workers Union v. Amberjack Ltd., 253 Ga. 438, 321 S.E.2d 736 (1984).

Compliance with subsection (b) of this section is jurisdictional and mandatory. Board of Comm'rs v. Allgood, 234 Ga. 9, 214 S.E.2d 522 (1975).

Requirements of subsection (b) of this section are jurisdictional and unless the movant or applicant complies with such conditions precedent for granting a restraining order without notice to the opposite party as are set forth therein, the judge to whom the application is made acquires no jurisdiction to issue such order. Mar-Pak Mich., Inc. v. Pointer, 226 Ga. 189, 173 S.E.2d 206 (1970).

While subsection (b) of this section does not specifically use the word "jurisdiction," the statute's language is not subject to any interpretation other than that the statute denies authority to the judges of the superior courts to issue ex parte restraining orders unless it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss, or damage will result to an applicant before notice can be served and a hearing had thereon. Mar-Pak Mich., Inc. v. Pointer, 226 Ga. 189, 173 S.E.2d 206 (1970).

Mootness.

- Because a suspect was indicted, and the case was before an assigned trial court, an order granting the suspect's motion to restrain extra-judicial statements to the media was vacated, and a new order addressing non-disclosure was entered, the media's appeal of the restraining order was moot. AJC Gwinnett News v. Corbin, 279 Ga. 842, 621 S.E.2d 753 (2005).

Officers' argument that a temporary restraining order (TRO) was invalid was moot because the TRO had been superseded by an interlocutory injunction, and the officers did not argue that any alleged error in entering the TRO somehow infected the interlocutory injunction, which was entered after notice to the officers and a full hearing. Pittman v. State, 288 Ga. 589, 706 S.E.2d 398 (2011).

Force of temporary restraining order.

- Temporary restraining order granted to remain of force until hearing of application for interlocutory injunction has all the force of an injunction, until rescinded or modified by the court. Corley v. Crompton-Highland Mills, 201 Ga. 333, 39 S.E.2d 861 (1946) (decided under former Code 1933, Ch. 2, T. 55).

Affidavit or verified complaint required.

- Restraining order is not issued in compliance with subsection (b) of this section if there is no affidavit or verified complaint making the required factual showing. Finney v. Pan-Am. Fire & Cas. Co., 123 Ga. App. 250, 180 S.E.2d 253 (1971).

Grant of restraining order void when conditions precedent not complied with.

- Failure of applicant to comply with conditions precedent in subsection (b) of this section for the granting of a temporary restraining order without notice renders issuance of a temporary restraining order utterly void. Finney v. Pan-Am. Fire & Cas. Co., 123 Ga. App. 250, 180 S.E.2d 253 (1971).

Amendment of restraining order without notice to plaintiffs.

- Any error in amending a temporary restraining order without notice to the plaintiffs is harmless when the amended order does not permit anything which the plaintiffs had sought to have enjoined. Grafton v. Turner, 227 Ga. 809, 183 S.E.2d 458 (1971).

County and county's employees had immunity from damages.

- Employee was not entitled to damages arising out of a violation of O.C.G.A. § 9-11-65(b) in obtaining a temporary restraining order (TRO) against the employee as the county had sovereign immunity and the county manager and the county attorney had sovereign immunity in their official capacities; the county manager and the county attorney had official immunity in their individual capacities as obtaining the TRO was a discretionary action that they undertook to protect the public and workplace safety after they were advised of the employee's actions. Wallace v. Greene County, 274 Ga. App. 776, 618 S.E.2d 642 (2005).

Temporary restraining order valid against corporation.

- Temporary restraining order entered against a corporation and the corporation's officers was not invalid because the verified complaint and the state's attorney's certification were sufficient under O.C.G.A. § 9-11-65 to show that immediate and irreparable injury would result unless relief was granted before the officers could be heard in opposition and why notice would not be required. Pittman v. State, 288 Ga. 589, 706 S.E.2d 398 (2011).

Automatic dissolution of temporary restraining order is not an appealable judgment. Clements v. Kushinka, 233 Ga. 273, 210 S.E.2d 804 (1974).

Dissolution only appealable when heard on merits.

- Issue of dissolution of a temporary restraining order must have been heard and determined on its merits before a judgment dissolving or refusing to dissolve the restraining order is subject to interlocutory appeal. Clements v. Kushinka, 233 Ga. 273, 210 S.E.2d 804 (1974).

Temporary protective order obtained under the Family Violence Act was not subject to the 30-day expiration period applicable to temporary restraining orders. Carroll v. State, 224 Ga. App. 543, 481 S.E.2d 562 (1997).

Late perfection of service.

- Fact that service is not perfected on a party until four days after a temporary restraining order has been issued does not divest the trial court of jurisdiction when the statutory requirements of O.C.G.A. § 9-11-65 have been met. Stewart v. McLean, 252 Ga. 455, 314 S.E.2d 439 (1984).

Temporary restraining order was improper against trust and trustee.

- Trial court erred in granting summary judgment to the niece and denying the trustee's cross-motion for summary judgment on the issue of whether the temporary restraining orders constituted a wrongful restraint on the trust and on the niece's liability because the pending probate court proceeding only involved the niece's challenge to the validity of the will and to the trustee's service as the will's executor; the niece never challenged the validity of the trust or the trustee's service. Bates v. Howell, 352 Ga. App. 733, 835 S.E.2d 814 (2019).

Form and Scope of Injunctions and Restraining Orders

Applicability of specificity requirement of subsection (d).

- Specificity requirement of subsection (d) of O.C.G.A. § 9-11-65 applies equally to mandated acts and acts of restraint. Caring Hands, Inc. v. Department of Human Resources, 214 Ga. App. 853, 449 S.E.2d 354 (1994), appeal dismissed, appeal after remand, 222 Ga. App. 608, 475 S.E.2d 660 (1996).

Personal care home could not be held in contempt for failure to comply with an order to relocate residents from its premises which failed to set forth a reasonably detailed plan for the relocation and a reasonable time limit for the relocation. Caring Hands, Inc. v. Department of Human Resources, 214 Ga. App. 853, 449 S.E.2d 354 (1994), appeal dismissed, appeal after remand, 222 Ga. App. 608, 475 S.E.2d 660 (1996).

Party is bound by restraining order of which a party has notice, despite the fact that personal service of the order upon the party may have been defective in some respect. Cameron v. Richards, 246 Ga. 231, 271 S.E.2d 146 (1980).

Duty of defendant to determine meaning of order.

- If the defendant is in doubt as to what acts the defendant may or may not do under an order granted pursuant to subsection (d) of this section, the defendant should request modification or construction of the statute's terms; if the defendant proceeds under the defendant's own construction, the defendant does so at the defendant's own peril. General Teamsters Local 528 v. Allied Foods, Inc., 228 Ga. 479, 186 S.E.2d 527 (1971), cert. denied, 405 U.S. 1041, 92 S. Ct. 1313, 31 L. Ed. 2d 582 (1972).

City of Atlanta's argument that the permanent injunction issued against the city lacked specificity pursuant to O.C.G.A. § 9-11-65(d), despite the fact that the city later withdrew a motion seeking the trial court's clarification of the injunction, failed as the motion for clarification in the trial court was the proper procedure. City of Atlanta v. S. States Police Benevolent Ass'n, 276 Ga. App. 446, 623 S.E.2d 557 (2005).

Subsection (d) of O.C.G.A. § 9-11-65 requires a specific description of the property or assets which are the subject of the injunction to appear on the face of the order. Hendrix v. Hendrix, 254 Ga. 662, 333 S.E.2d 596 (1985).

Injunctive order which refers to the complaint for its sole description of the property which the defendant is restrained from encumbering or conveying attempts an impermissible incorporation by reference. Hendrix v. Hendrix, 254 Ga. 662, 333 S.E.2d 596 (1985).

Injunction improper when order not specific in terms.

- Trial court's injunction ordering that a former employee be enjoined perpetually from disclosing the trade secrets of a former employer was improper because of the undefined term "trade secrets" which violated the requirement of O.C.G.A. § 9-11-65 that every injunction order be specific in the order's terms. Ward v. Process Control Corp., 247 Ga. 583, 277 S.E.2d 671 (1981); Sanford v. RDA Consultants Ltd., 244 Ga. App. 308, 535 S.E.2d 321 (2000).

With regard to the disclosure of proprietary information, the trial court's order which granted an employer an interlocutory injunction enforcing non-solicitation and non-disclosure clauses against an employee lacked the specificity mandated by O.C.G.A. § 9-11-65(d) as the trial court's order lacked sufficient detail to fully apprise the employee of which materials could not be used or disclosed. Pregler v. C&Z, Inc., 259 Ga. App. 149, 575 S.E.2d 915 (2003).

Order enjoining the construction of a cell phone tower on leased property was vacated because the order did not comply with O.C.G.A. § 9-11-65(d) by describing the property subject to the injunction in reasonable detail; O.C.G.A. § 9-11-65(d) was to be strictly applied in the context of interests in land, and the order's attempt to describe the property subject to the injunction by making reference to a lease attempted an impermissible incorporation by reference. Verticality, Inc. v. Warnell, 282 Ga. App. 873, 640 S.E.2d 369 (2006).

Details of injunctive order need not reveal trade secrets.

- O.C.G.A. § 9-11-65 does not require that a trial court's injunction against the disclosure of a trade secret itself disclose the trade secret; rather, the trial court's injunction need only include a general description of the trade secret sought to be protected. Ward v. Process Control Corp., 247 Ga. 583, 277 S.E.2d 671 (1981).

Nature of reasonable detail.

- Trial court's injunction against property owners who refused to allow a power company access to conduct surveys for a planned electrical transmission line was proper because the injunction was in "reasonable" detail when the injunction specified the land affected and the acts that the property owners were not to interfere with. Bearden v. Ga. Power Co., 262 Ga. App. 550, 586 S.E.2d 10 (2003).

Preservation of marital asset.

- In divorce proceedings, a trial court was within the court's discretion under O.C.G.A. § 9-11-65(e) to order that a former wife pay the amount remaining from a line of credit the wife took out on the parties' marital residence into the court registry as evidence was presented that the wife had been dissipating a significant marital asset without notice to the former husband. Hunter v. Hunter, 289 Ga. 9, 709 S.E.2d 263 (2011).

Trial court could enjoin non-parties over whom court lacked personal jurisdiction.

- Trial court did not err in enjoining property managers who were the defendants in a suit involving a property management agreement from pursuing a suit regarding the same agreement in Virginia. Under O.C.G.A. § 9-11-65(d), the injunction also properly reached the defendants' associated entities over whom the trial court lacked personal jurisdiction. Am. Mgmt. Servs. East, LLC v. Fort Benning Family Cmtys., LLC, 313 Ga. App. 124, 720 S.E.2d 377 (2011), cert. denied, No. S12C0630, 2012 Ga. LEXIS 386 (Ga. 2012).

Since the owner of the lot on which the road existed was in concert with the property owner and had notice of the action and the judgment entered against it, the trial court's injunction against the lot owner, who was not a party to the action, was valid. S-D Rira, LLC v. Outback Prop. Owners' Ass'n, Ga. App. , S.E.2d (Nov. 21, 2014).

RESEARCH REFERENCES

Am. Jur. 2d.

- 42 Am. Jur. 2d, Injunctions, §§ 7, 243, 244, 249, 256, 257, 261 et seq., 276, 277, 280, 282 et seq., 299 et seq., 308, 331, 332.

14A Am. Jur. Pleading and Practice Forms, Injunctions, §§ 4, 105, 116, 152.

C.J.S.

- 35B C.J.S., Federal Civil Procedure, §§ 1048, 1342, 1343, 1345. 43A C.J.S., Injunctions, §§ 8, 20 et seq., 121, 122, 226, 227, 232, 239, 240, 244 et seq., 259, 260, 263, 265 et seq., 280 et seq., 289, 309, 310, 368 et seq., 402 et seq.

ALR.

- Right of state or federal court to protect litigants by enjoining proceedings in bankruptcy, 32 A.L.R. 979.

May suit for injunction against a nonresident rest upon constructive service or service out of state, 69 A.L.R. 1038.

When preliminary order or temporary injunction deemed to have been dissolved within contemplation of statute providing for recovery of damages where injunction is dissolved, 123 A.L.R. 1235.

Constitutionality of statute or practice requiring or authorizing temporary restraining order or injunction without notice, 152 A.L.R. 168.

Decree granting or refusing injunction as res judicata in action for damages in relation to matter concerning which injunction was asked in first suit, 26 A.L.R.2d 446.

Furnishing of bond as prerequisite to issuance of temporary restraining order, 73 A.L.R.2d 854.

Dismissal of injunction action or bill without prejudice as breach of injunction bond, 91 A.L.R.2d 1312.

Period for which damages are recoverable or are computed under injunction bond, 95 A.L.R.2d 1190.

Who, under Federal Rule 65(d) and state counterparts, are persons "in active concert or participation" with parties to action so as to be bound by order granting an injunction, 97 A.L.R.2d 490.

Appealability of order granting, extending, or refusing to dissolve temporary restraining order, 19 A.L.R.3d 403.

Appealability of order refusing to grant or dissolving temporary restraining order, 19 A.L.R.3d 459.

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